This title may be cited as the ‘‘Online Copyright Infringement Liability Limitation
Act’’.

SEC. 202. LIMITATIONS ON LIABILITY FOR COPYRIGHT INFRINGE-MENT.

(a) IN GENERAL.—Chapter 5 of title 17, United States Code, is amended by adding after
section 511 the following new section:

‘‘§ 512. Limitations on liability relating to material online

‘‘(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS.—A service provider shall not be liable
for monetary relief, or, except as provided in subsection (j), for injunctive or other
equitable relief, for infringement of copyright by reason of the provider’s transmitting,
routing, or providing connections for, material through a system or network controlled
or operated by or for the service provider, or by reason of the intermediate and transient
storage of that material in the course of such transmitting, routing, or providing
connections, if—

‘‘(1) the transmission of the material was initiated by or at the direction of a person
other than the service provider;

‘‘(2) the transmission, routing, provision of connections, or storage is carried out
through an automatic technical process without selection of the material by the service
provider;

‘‘(3) the service provider does not select the recipients of the material except as
an automatic response to the request of another person;

‘‘(4) no copy of the material made by the service provider in the course of such intermediate
or transient storage is maintained on the system or network in a manner ordinarily
accessible to anyone other than anticipated recipients, and no such copy is maintained
on the system or network in a manner ordinarily accessible to such anticipated recipients
for a longer period than is reasonably necessary for the transmission, routing, or
provision of connections; and

‘‘(5) the material is transmitted through the system or network without modification
of its content.

‘‘(b) SYSTEM CACHING.—

‘‘(1) LIMITATION ON LIABILITY.—A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the intermediate and temporary
storage of material on a system or network controlled or operated by or for the service
provider in a case in which—

‘‘(A) the material is made available online by a person other than the service provider,

‘‘(B) the material is transmitted from the person described in subparagraph (A) through
the system or network to a person other than the person described in subparagraph
(A) at the direction of that other person, and

‘‘(C) the storage is carried out through an automatic technical process for the purpose
of making the material available to users of the system or network who, after the
material is transmitted as described in subparagraph (B), request access to the material
from the person described in subparagraph (A), if the conditions set forth in paragraph
(2) are met.

(2) CONDITIONS.—The conditions referred to in paragraph (1) are that—

‘‘(A) the material described in paragraph (1) is transmitted to the subsequent users
described in paragraph (1)(C) without modification to its content from the manner
in which the material was transmitted from the person de-scribed in paragraph (1)(A);

‘‘(B) the service provider described in paragraph (1) complies with rules concerning
the refreshing, reloading, or other updating of the material when specified by the
person making the material available online in accordance with a generally accepted
industry standard data communications protocol for the system or network through which
that person makes the material available, except that this subparagraph applies only
if those rules are not used by the person described in paragraph (1)(A) to prevent
or unreasonably impair the intermediate storage to which this subsection applies;

‘‘(C) the service provider does not interfere with the ability of technology associated
with the material to return to the person described in paragraph (1)(A) the information
that would have been available to that person if the material had been obtained by
the subsequent users described in paragraph (1)(C) directly from that person, except
that this subparagraph applies only if that technology—

‘‘(i) does not significantly interfere with the performance of the provider’s system
or network or with

‘‘(iii) does not extract information from the provider’s system or network other than
the information that would have been available to the person described in paragraph
(1)(A) if the subsequent users had gained access to the material directly from that
person;

‘‘(D) if the person described in paragraph (1)(A) has in effect a condition that a
person must meet prior to having access to the material, such as a condition based
on payment of a fee or provision of a password or other information, the service provider
permits access to the stored material in significant part only to users of its system
or network that have met those conditions and only in accordance with those conditions;
and

‘‘(E) if the person described in paragraph (1)(A) makes that material available online
without the authorization of the copyright owner of the material, the service provider
responds expeditiously to remove, or disable access to, the material that is claimed
to be infringing upon notification of claimed infringement as described in subsection
(c)(3), except that this subparagraph applies only if—

‘‘(i) the material has previously been removed from the originating site or access
to it has been disabled, or a court has ordered that the material be removed from
the originating site or that access to the material on the originating site be disabled;
and

‘‘(ii) the party giving the notification includes in the notification a statement
confirming that the material has been removed from the originating site or access
to it has been disabled or that a court has ordered that the material be removed from
the originating site or that access to the material on the originating site be disabled.

‘‘(c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT

DIRECTION OF USERS.—

‘‘(1) IN GENERAL.—A service provider shall not be liable for monetary relief, or,
except as provided in subsection (j), for injunctive or other equitable relief, for
infringement of copyright by reason of the storage at the direction of a user of material
that resides on a system or network controlled or operated by or for the service provider,
if the service provider—

‘‘(A)(i) does not have actual knowledge that the material or an activity using the
material on the system or network is infringing;

‘‘(ii) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or

‘‘(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove,
or disable access to, the material;

‘‘(B) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to control
such activity; and

‘‘(C) upon notification of claimed infringement as de-scribed in paragraph (3), responds
expeditiously to remove, or disable access to, the material that is claimed to be
infringing or to be the subject of infringing activity.

‘‘(2) DESIGNATED AGENT.—The limitations on liability established in this subsection
apply to a service provider only if the service provider has designated an agent to
receive notifications of claimed infringement described in paragraph (3), by making
available through its service, including on its website in a location accessible to
the public, and by providing to the Copyright Office, substantially the following
information:

‘‘(A) the name, address, phone number, and electronic mail address of the agent.

‘‘(B) other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available
to the public for inspection, including through the Internet, in both electronic and
hard copy formats, and may require payment of a fee by service providers to cover
the costs of maintaining the directory.

‘‘(3)ELEMENTS OF NOTIFICATION.—

‘‘(A) To be effective under this subsection, a notification of claimed infringement
must be a written communication provided to the designated agent of a service provider
that includes substantially the following:

‘‘(i) A physical or electronic signature of a person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed.

‘‘(ii) Identification of the copyrighted work claimed to have been infringed, or,
if multiple copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that site.

‘‘(iii) Identification of the material that is claimed to be infringing or to be the
subject of infringing activity and that is to be removed or access to which is to
be disabled, and information reasonably sufficient to permit the service provider
to locate the material.

‘‘(iv) Information reasonably sufficient to permit the service provider to contact
the complaining party, such as an address, telephone number, and, if avail-able, an
electronic mail address at which the complaining party may be contacted.

‘‘(v) A statement that the complaining party has a good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner, its
agent, or the law.

‘‘(vi) A statement that the information in the notification is accurate, and under
penalty of perjury, that the complaining party is authorized to act on behalf of the
owner of an exclusive right that is allegedly in-fringed.

‘‘(B)(i) Subject to clause (ii), a notification from a copyright owner or from a person
authorized to act on behalf of the copyright owner that fails to comply substantially
with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A)
in determining whether a service provider has actual knowledge or is aware of facts
or circumstances from which infringing activity is apparent.

‘‘(ii) In a case in which the notification that is provided to the service provider’s
designated agent fails to comply substantially with all the provisions of subparagraph
(A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph
(A), clause (i) of this subparagraph applies only if the service provider promptly
attempts to contact the person making the notification or takes other reasonable steps
to assist in the receipt of notification that substantially complies with all the
provisions of subparagraph (A).

‘‘(d) INFORMATION LOCATION TOOLS.—A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the provider referring or linking
users to an on-line location containing infringing material or infringing activity,
by using information location tools, including a directory, index, reference, pointer,
or hypertext link, if the service provider—

‘‘(1)(A) does not have actual knowledge that the material or activity is infringing;

‘‘(B) in the absence of such actual knowledge, is not aware of facts or circumstances
from which infringing activity is apparent; or

‘‘(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or
disable access to, the material;

‘‘(2) does not receive a financial benefit directly attributable to the infringing
activity, in a case in which the service provider has the right and ability to control
such activity; and

‘‘(3) upon notification of claimed infringement as described in subsection (c)(3),
responds expeditiously to remove, or disable access to, the material that is claimed
to be infringing or to be the subject of infringing activity, except that, for purposes
of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be
identification of the reference or link, to material or activity claimed to be infringing,
that is to be removed or access to which is to be disabled, and information reasonably
sufficient to permit the service provider to locate that reference or link.

‘‘(e) LIMITATION ON LIABILITY OF NONPROFIT EDUCATIONAL IN-STITUTIONS.—(1) When a public
or other nonprofit institution of higher education is a service provider, and when
a faculty member or graduate student who is an employee of such institution is per-forming
a teaching or research function, for the purposes of sub-sections (a) and (b) such
faculty member or graduate student shall be considered to be a person other than the
institution, and for the purposes of subsections (c) and (d) such faculty member’s
or graduate student’s knowledge or awareness of his or her infringing activities shall
not be attributed to the institution, if—

‘‘(A) such faculty member’s or graduate student’s infringing activities do not involve
the provision of online access to instructional materials that are or were required
or recommended, within the preceding 3-year period, for a course taught at the institution
by such faculty member or graduate student;

‘‘(B) the institution has not, within the preceding 3-year period, received more than
2 notifications described in subsection (c)(3) of claimed infringement by such faculty
member or graduate student, and such notifications of claimed infringement were not
actionable under subsection (f); and

‘‘(C) the institution provides to all users of its system or network informational
materials that accurately describe, and promote compliance with, the laws of the United
States relating to copyright.

‘‘(2) INJUNCTIONS.—For the purposes of this subsection, the limitations on injunctive
relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall
apply.

‘‘(f) MISREPRESENTATIONS.—Any person who knowingly materially misrepresents under
this section—

‘‘(1) that material or activity is infringing, or

‘‘(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by
the alleged infringer, by any copyright owner or copyright owner’s authorized licensee,
or by a service provider, who is injured by such misrepresentation, as the result
of the service provider relying upon such misrepresentation in removing or disabling
access to the material or activity claimed to be infringing, or in replacing the removed
material or ceasing to disable access to it.

‘‘(g) REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY.—

‘‘(1) NO LIABILITY FOR TAKING DOWN GENERALLY.—Subject to paragraph (2), a service
provider shall not be liable to any person for any claim based on the service provider’s
good faith disabling of access to, or removal of, material or activity claimed to
be infringing or based on facts or circumstances from which infringing activity is
apparent, regardless of whether the material or activity is ultimately determined
to be infringing.

‘‘(2) EXCEPTION.—Paragraph (1) shall not apply with respect to material residing at
the direction of a subscriber of the service provider on a system or network controlled
or operated by or for the service provider that is removed, or to which access is
disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C),
unless the service provider—

‘‘(A) takes reasonable steps promptly to notify the subscriber that it has removed
or disabled access to the material;

‘‘(B) upon receipt of a counter notification described in paragraph (3), promptly
provides the person who provided the notification under subsection (c)(1)(C) with
a copy of the counter notification, and informs that person that it will replace the
removed material or cease disabling access to it in 10 business days; and

‘‘(C) replaces the removed material and ceases disabling access to it not less than
10, nor more than 14, business days following receipt of the counter notice, unless
its designated agent first receives notice from the person who submitted the notification
under subsection (c)(1)(C) that such person has filed an action seeking a court order
to restrain the subscriber from engaging in infringing activity relating to the material
on the service provider’s system or network.

‘‘(3) CONTENTS OF COUNTER NOTIFICATION.—To be effective under this subsection, a counter
notification must be a written communication provided to the service provider’s designated
agent that includes substantially the following:

‘‘(A) A physical or electronic signature of the sub-scriber.

‘‘(B) Identification of the material that has been removed or to which access has
been disabled and the location at which the material appeared before it was removed
or access to it was disabled.

‘‘(C) A statement under penalty of perjury that the subscriber has a good faith belief
that the material was removed or disabled as a result of mistake or misidentification
of the material to be removed or disabled.

‘‘(D) The subscriber’s name, address, and telephone number, and a statement that the
subscriber consents to the jurisdiction of Federal District Court for the judicial
district in which the address is located, or if the subscriber’s address is outside
of the United States, for any judicial district in which the service provider may
be found, and that the subscriber will accept service of process from the person who
provided notification under subsection (c)(1)(C) or an agent of such person.

‘‘(4) LIMITATION ON OTHER LIABILITY.—A service provider’s compliance with paragraph
(2) shall not subject the service provider to liability for copyright infringement
with respect to the material identified in the notice provided under subsection (c)(1)(C).

‘‘(h) SUBPOENA TO IDENTIFY INFRINGER.—

‘‘(1) REQUEST.—A copyright owner or a person authorized to act on the owner’s behalf
may request the clerk of any United States district court to issue a subpoena to a
service provider for identification of an alleged infringer in accordance with this
subsection.

‘‘(2) CONTENTS OF REQUEST.—The request may be made by filing with the clerk—

‘‘(A) a copy of a notification described in subsection (c)(3)(A);

‘‘(B) a proposed subpoena; and

‘‘(C) a sworn declaration to the effect that the purpose for which the subpoena is
sought is to obtain the identity of an alleged infringer and that such information
will only be used for the purpose of protecting rights under this title.

‘‘(3) CONTENTS OF SUBPOENA.—The subpoena shall authorize and order the service provider
receiving the notification and the subpoena to expeditiously disclose to the copyright
owner or person authorized by the copyright owner information sufficient to identify
the alleged infringer of the material described in the notification to the extent
such information is available to the service provider.

‘‘(4) BASIS FOR GRANTING SUBPOENA.—If the notification filed satisfies the provisions
of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying
declaration is properly executed, the clerk shall expeditiously issue and sign the
proposed subpoena and return it to the requester for delivery to the service provider.

‘‘(5) ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA.— Upon receipt of the issued
subpoena, either accompanying or subsequent to the receipt of a notification described
in subsection (c)(3)(A), the service provider shall expeditiously disclose to the
copyright owner or person authorized by the copyright owner the information required
by the subpoena, notwithstanding any other provision of law and regardless of whether
the service provider responds to the notification.

‘‘(6) RULES APPLICABLE TO SUBPOENA.—Unless otherwise provided by this section or by
applicable rules of the court, the procedure for issuance and delivery of the subpoena,
and the remedies for noncompliance with the subpoena, shall be governed to the greatest
extent practicable by those provisions of the Federal Rules of Civil Procedure governing
the issuance, service, and enforcement of a subpoena duces tecum.

‘‘(i) CONDITIONS FOR ELIGIBILITY.—

‘‘(1) ACCOMMODATION OF TECHNOLOGY.—The limitations on liability established by this
section shall apply to a service provider only if the service provider—

‘‘(A) has adopted and reasonably implemented, and informs subscribers and account
holders of the service provider’s system or network of, a policy that provides for
the termination in appropriate circumstances of subscribers and account holders of
the service provider’s system or network who are repeat infringers; and

‘‘(B) accommodates and does not interfere with standard technical measures.

‘‘(2) DEFINITION.—As used in this subsection, the term ‘standard technical measures’
means technical measures that are used by copyright owners to identify or protect
copyrighted works and—

‘‘(A) have been developed pursuant to a broad consensus of copyright owners and service
providers in an open, fair, voluntary, multi-industry standards process;

‘‘(B) are available to any person on reasonable and nondiscriminatory terms; and

‘‘(C) do not impose substantial costs on service providers or substantial burdens
on their systems or networks.

‘‘(j) INJUNCTIONS.—The following rules shall apply in the case of any application
for an injunction under section 502 against a service provider that is not subject
to monetary remedies under this section:

‘‘(1) SCOPE OF RELIEF.—(A) With respect to conduct other than that which qualifies
for the limitation on remedies set forth in subsection (a), the court may grant injunctive
relief with respect to a service provider only in one or more of the following forms:

‘‘(i) An order restraining the service provider from providing access to infringing
material or activity residing at a particular online site on the provider’s system
or network.

‘‘(ii) An order restraining the service provider from providing access to a subscriber
or account holder of the service provider’s system or network who is engaging in infringing
activity and is identified in the order, by terminating the accounts of the subscriber
or account holder that are specified in the order.

‘‘(iii) Such other injunctive relief as the court may consider necessary to prevent
or restrain infringement of copyrighted material specified in the order of the court
at a particular online location, if such relief is the least burdensome to the service
provider among the forms of relief comparably effective for that purpose.

‘‘(B) If the service provider qualifies for the limitation on remedies described in
subsection (a), the court may only grant injunctive relief in one or both of the following
forms:

‘‘(i) An order restraining the service provider from providing access to a subscriber
or account holder of the service provider’s system or network who is using the provider’s
service to engage in infringing activity and is identified in the order, by terminating
the accounts of the subscriber or account holder that are specified in the order.

‘‘(ii) An order restraining the service provider from providing access, by taking
reasonable steps specified in the order to block access, to a specific, identified,
online location outside the United States.

‘‘(A) whether such an injunction, either alone or in combination with other such injunctions
issued against the same service provider under this subsection, would significantly
burden either the provider or the operation of the provider’s system or network;

‘‘(B) the magnitude of the harm likely to be suffered by the copyright owner in the
digital network environment if steps are not taken to prevent or restrain the infringement;

‘‘(C) whether implementation of such an injunction would be technically feasible and
effective, and would not interfere with access to noninfringing material at other
on-line locations; and

‘‘(D) whether other less burdensome and comparably effective means of preventing or
restraining access to the infringing material are available.

‘‘(3) NOTICE AND EX PARTE ORDERS.—Injunctive relief under this subsection shall be
available only after notice to the service provider and an opportunity for the service
provider to appear are provided, except for orders ensuring the preservation of evidence
or other orders having no material adverse effect on the operation of the service
provider’s communications network.

‘‘(k) DEFINITIONS.—

‘‘(1) SERVICE PROVIDER.—(A) As used in subsection (a), the term ‘service provider’
means an entity offering the transmission, routing, or providing of connections for
digital online communications, between or among points specified by a user, of material
of the user’s choosing, without modification to the content of the material as sent
or received.

‘‘(B) As used in this section, other than subsection (a), the term ‘service provider’
means a provider of online services or network access, or the operator of facilities
therefor, and includes an entity described in subparagraph (A).

‘‘(2) MONETARY RELIEF.—As used in this section, the term ‘monetary relief’ means damages,
costs, attorneys’ fees, and any other form of monetary payment.

‘‘(l) OTHER DEFENSES NOT AFFECTED.—The failure of a service provider’s conduct to
qualify for limitation of liability under this section shall not bear adversely upon
the consideration of a defense by the service provider that the service provider’s
conduct is not in-fringing under this title or any other defense.

‘‘(m) PROTECTION OF PRIVACY.—Nothing in this section shall be construed to condition
the applicability of subsections (a) through (d) on—

‘‘(1) a service provider monitoring its service or affirmatively seeking facts indicating
infringing activity, except to the extent consistent with a standard technical measure
complying with the provisions of subsection (i); or

‘‘(2) a service provider gaining access to, removing, or disabling access to material
in cases in which such conduct is prohibited by law.

‘‘(n) CONSTRUCTION.—Subsections (a), (b), (c), and (d) describe separate and distinct
functions for purposes of applying this section. Whether a service provider qualifies
for the limitation on liability in any one of those subsections shall be based solely
on the criteria in that subsection, and shall not affect a determination of whether
that service provider qualifies for the limitations on liability under any other such
subsection.’’.

(b) CONFORMING AMENDMENT.—The table of sections for chapter 5 of title 17, United
States Code, is amended by adding at the end the following:

‘‘512. Limitations on liability relating to material online.’’.

SEC. 203. EFFECTIVE DATE.

This title and the amendments made by this title shall take effect on the date of
the enactment of this Act.